This week, in an unsigned per curiam opinion, the Supreme Court punted on the first Second Amendment case it has reviewed in a decade, but four justices indicated they may come back to the issue soon.

In New York State Rifle & Pistol Association v. City of New York, the Court held that a challenge to New York City’s gun ordinances was moot. In dissent, Justice Alito accused the majority of allowing the City of New York to manipulate the Court’s docket to evade review.  Justice Alito has a point.

The Supreme Court originally granted review to consider the constitutionality of a New York City ordinance that prohibited licensed gun owners from taking their weapons to a second home or to a firing range outside the City. The plaintiffs allege that practice is necessary for the safe and responsible use of firearms for self-defense and that the Second Amendment requires “unrestricted access to gun ranges and shooting events in order to practice and perfect safe gun handling skills.” The Second Circuit, however, upheld New York City’s ordinance, deriding the burden on plaintiffs’ Second Amendment right as “trivial.”   

Once the Supreme Court granted review, however, the City amended its ordinance to provide that holders of premises licenses would be allowed to transport their guns “directly” to ranges, competitions, and second homes. The City then urged the Court to dismiss the case before briefing, arguing the case was moot.

A majority of the Supreme Court ultimately complied.

In his dissent, however, Justice Alito (joined by Justices Gorsuch and Thomas) argues that the amended ordinance does not moot the case because it does not give the Petitioners all the relief they sought, the unfettered ability to transport their weapons to shooting ranges for practice and to second homes. Rather, the amended ordinance requires that the travel be “direc[t]” and that travel within the City must be “continuous and uninterrupted.”  

As a result, petitioners still have a concrete interest in the case.  Further, the Supreme Court is usually wary of attempts by a party to manufacture mootness to avoid review. Finally, Justice Alito noted that the case was not moot for the simple reason that a finding that the prior ordinance was unconstitutional could give rise to damages.

On the merits, Justice Alito would have held that the New York City ordinance violated the Second Amendment. In District of Columbia v. Heller, the Court ruled unconstitutional a law that prevented DC residents from keeping a gun in the home for purposes of self-defense. This right includes the right to take the gun outside the home for certain purposes, like maintenance or repair or to transfer ownership (purposes allowed by New York City).  Justice Alito would have held that the right includes the right to take a gun to a range to gain the skills to use it responsibly. He quoted the Court’s holding in Heller, “‘to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use,’” and the Seventh Circuit’s reminder that the core right to possess a gun for self-defense “wouldn’t mean much without the training and practice that make it effective.”

In perhaps the most interesting paragraph of the 3 opinions in the case, Justice Kavanaugh’s brief concurrence stated that he agrees with Justice Alito’s discussion of the merits, was concerned that federal and state courts were not properly applying Heller, and hopes the Court will address the issue soon, perhaps even in one of the several pending Second Amendment certiorari petitions.

Justice Kavanaugh’s concurrence makes clear that at least four members of the Court are poised to take a hard look at state and local rules that take a narrow view of the Second Amendment right confirmed by Heller.  And four votes is enough for a grant of certiorari to review a case.